If you get sued for retaliation by an employee who has previously filed a sexual harassment complaint, a jury will probably be suspicious of any discipline she received after complaining.
Unless you can convincingly show the discipline you levied was deserved, a jury will have to decide if it was retaliation or legitimate punishment.
Recent case: Melissa Routh handled probation cases at a remote juvenile detention facility in the southern Sierra Nevada. She ended up working there just a few days before being transferred. She had presented a medical excuse that said she got nauseated when commuting through the mountains.
Then she filed a sexual harassment complaint based on a conversation she heard about in which her body was the topic. The participants were admonished that such talk wasn’t appropriate.
Over the next two years, Routh became the focus of several internal investigations alleging she dishonestly prepared reports. Ultimately, she lost her job over a time-card dispute.
Routh sued for retaliation and sexual harassment.
The court dismissed her harassment claim; it said the incident wasn’t severe or serious enough to have altered the terms and conditions of her employment.
But it did order a trial on retaliation, reasoning that the extra scrutiny Routh received could have been legitimate—or evidence that the employer wanted her out because she complained. A jury will decide. (Routh v. Kern County Probation Department, No. F01156, Court of Appeal of California, 5th Appellate District, 2012)
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